HKSAR v. DE GRACIA , MARIA ERLA TABASA

HCMA 621/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 621 OF 2013

(ON APPEAL FROM FLCC NO. 2848 OF 2013)

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JUDGMENT

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Introduction

1. The appellant appeared in Fanling Magistrates’ Courts charged with four immigration offences, contrary to various provisions of the Immigration Ordinance Cap 115.  They were, in the order in which they appeared on the Information, using a false travel document, contrary to section 42(2)(b); making a false representation to an Immigration Assistant, contrary to section 42(1)(a); making a false statement for the purpose of obtaining an entry permit, contrary to section 42(1)(c); and making a false representation to an Immigration Officer, contrary to section 42(1)(a).

2. The appellant pleaded not guilty to the first charge and the prosecution offered no evidence in respect of it with the consequence that it was dismissed.  She pleaded guilty to the remaining three charges and was sentenced to 12 months’ imprisonment on the second charge, 6 months’ imprisonment on the third charge and 4 months’ imprisonment on the fourth charge.  The magistrate further ordered that 2 months of the sentence for Charge 3 and 1 month of the sentence for Charge 4 should run consecutively with the 12 months’ sentence for Charge 2.  This made a total sentence imposed upon the appellant of 15 months’ imprisonment.

3. The appellant now appeals against these sentences.

The Background to the Offences

4. The offences all derive from an error contained in the first passport that the applicant obtained from the Philippine Government back in 1995.  She obtained this passport through an employment agency who was processing an application by her to work in Saudi Arabia.  When she received this passport she noted that it contained an incorrect year of birth.  The year of birth contained in this passport was 12 July 1964 when in reality her true birthday is 12 July 1970.  Apart from containing this error as to the year of her birth, the passport was genuine.

5. After her period in Saudi Arabia the appellant used an agent to apply for an entry permit in order to work in Hong Kong and did so using the same passport.  Through this agent she applied on 24 November 1997 for an entry permit so as to enable her to take up employment in Hong Kong.  This conduct of misstating her year of birth in her application for an entry permit is the subject matter of Charge 3.

6. The appellant, in fact, lived and worked in Hong Kong as a domestic helper for 13 years between 1997 and 2010.  On 26 December 2003 she obtained her entry into Hong Kong by presenting to an Immigration Officer this passport which contained the wrong year of birth.  This conduct is the subject matter of Charge 2.

7. On or about the 20 August 2010 she submitted an application for an extension of stay and in this application she again described her date of birth in terms of the wrong year of birth.  This conduct is the subject matter of Charge 4.

The Mitigation Advanced at Trial

8. At trial, it was said on her behalf that the error in her passport came about because the employment agency that applied for her passport made a mistake in stating the year of her birth.  She was faced at that time with either having to accept the passport with this error in it or to give up the opportunity to work in Saudi Arabia.  This was because she only detected the error in the passport the day before she was planning to leave the Philippines to travel to Saudi Arabia.  In these circumstances she felt she had no alternative but to accept the passport with the mis‑description of the year of her birth.  It was many years later that she finally corrected it when she obtained a replacement passport.

9. At the time of sentencing she was 43 years of age and during her period in Hong Kong she had lived a blameless life.  She, therefore, presented to the Court as a mature woman with a clear record.  She has a young baby in Mindanao and when she returned to Hong Kong this year, it was for the purpose of visiting her partner, not to live here permanently.  However, the Immigration Department detected the difference in the year of birth when they compared the information contained in her current passport with the information from her previous entries.

10. Her lawyer submitted that there was nothing sinister in her conduct and no ulterior motive was involved in the obtaining of a passport with a false particular in it and in the subsequent use of that passport.  Her lawyer emphasized that this was just a mis-description of the year of birth and that she wasn’t trying to conceal her identity.

11. When all these matters were combined with her clear record and the fact that she had pleaded guilty at the earliest opportunity, it was suggested that this placed her in the exceptional category.  On this issue the magistrate was referred to a number of authorities, of which one was HKSAR v Warniati HCMA 137/2005; unreported, 9 March 2005.

The Reasons for Sentence

12. In relation to the second charge, the magistrate relied on two authorities from which he concluded that the starting point of 18 months’ imprisonment was justified for an offence of making a false representation to an Immigration Officer, contrary to section 42(1)(a) of Cap 115.

13. In respect of the third charge, he again referred to a number of sentencing authorities from which he concluded that authorities relevant to the offence under section 42(1)(a) also applied to the offence of making a false statement for the purpose of obtaining an entry permit, contrary to section 42(1)(c) of Cap 115.

14. Finally, in respect of Charge 4 he referred to the decision of HKSAR v Bodomo Marissa Flores [2005] 4 HKLRD 285 to justify adopting a starting point of 6 months’ imprisonment.  However, the magistrate said that with the benefit of hindsight he felt he should have adopted a starting point higher than 6 months’ imprisonment on Charge 4 as he felt the criminality in making a false representation as to the date of birth was of the same level of gravity as making a false representation by name or production of a false or forged document.

15. He then went on to consider the submissions advanced in mitigation and particularly the submission that the circumstances of this offender and this offence were so exceptional as to justify him imposing a suspended sentence of imprisonment on each of the charges.  In this regard, the magistrate queried why the appellant did not bother to rectify the mistake in her passport after she returned from Saudi Arabia.  There was no attempt by her to draw the mistake to the attention of her government or to take any action to correct it.  After examining the various authorities referred to him, he concluded that the circumstances of the present case were distinguishable from other cases where a more lenient approach had been taken towards sentence.  He concluded that it was not appropriate to impose a suspended sentence on this appellant for any of the charges.

The Grounds of Appeal

16. There is only one ground of appeal and it is that the sentences on each charge are wrong in principle and/or manifestly excessive.

Discussion

17. Chronologically, the appellant’s offences occurred in November 1997 (3^rd charge), December 2003 (2^nd charge) and August 2010 (4^th charge). If the appellant stands to be sentenced in accordance with any sentencing tariff then it must be the one prevailing at the time of the commission of the offences.  Of course, the defence case is that irrespective of whether there was any such sentencing tariff being applied by the courts at the time these offences were committed, the circumstances of this appellant and of the commission of these offences are sufficiently exceptional to justify taking her outside of any such sentencing tariff and the Court adopting an individualized approach to her sentencing.  Given the matters advanced in mitigation such an approach would, it is submitted, suggest a lenient approach to this appellant is appropriate, such as imposing on her a suspended sentence or a sentence which allows for her immediate release.  The appellant has been in custody since her arrest on 28 August 2013 and so has, by the date of her appeal, served a period of just over 3 months’ imprisonment.

18. The matters which are said to distinguish this appellant from others who have been convicted of similar offences and which justify treating her more leniently are as follows:

(i) no forged travel document was involved in the commission of the offences;

(ii) the mistake made in the passport as to the year of birth was not a mistake made by the appellant but by others acting on her behalf.  Whilst it is true, it is said, that the appellant should not have persisted in the use of the passport, she did ultimately replace it and when queried by Immigration Department officials when she entered on her new passport she immediately revealed all about the first passport that contained the incorrect year of birth in it;

(iii) the appellant was clearly not attempting to conceal her identity;

(iv) no sinister motive was involved in the mis-description of her year of birth and she was not attempting to obtain any benefit through that mistake, such as obtaining employment; and

(v) there has been no adverse effect on the local employment market as a result of her conduct.

19. I agree that the unusual circumstances of this case take the appellant outside of any guideline tariff sentences that might normally be employed by the courts for these offences and that this appellant is a person who falls to be sentenced on an individualized basis.  The question is whether an immediate custodial sentence is nevertheless required and answering this question requires a consideration of the culpability involved in the appellant’s conduct.

20. Passports are relied upon as a means of proving a person’s identity and their importance has increased with the increase in the ease of travel and the huge increase in the travelling population.  At border controls immigration officials rely upon the genuiness of a passport and the accuracy of the personal identifying particulars in it.  Irrespective of the intention of the passport holder, the potential exists for government officials to be misled if the identifying particulars in a passport are incorrect and as a consequence a government may not know the true identity of the person they are allowing to enter their territory.  An important part of the culpability of an offender who knowingly allows false identifying particulars to remain uncorrected lies in the consequence that his or her true identity is concealed from the government relying on that passport and the information in it.  There are strong public policy considerations present in immigration offences and that is why courts treat them so seriously and impose on offenders severe sentences.

21. After giving this question much anxious consideration, I am of the view that custodial sentences are warranted for these offences.  Had the appellant made efforts to correct or replace the passport then I would have been inclined to pass on her a sentence other than immediate imprisonment.

22. Whilst I accept that there may not be a need in respect of this appellant for a sentence of personal deterrence that does not obviate the need to impose sentences of general deterrence for offences of this nature.  In my view such a need can be accommodated by short sentences of imprisonment.

23. The appellant last used this passport to apply for an extension of stay in 2010.  This must mean that throughout her period of employment in Hong Kong she continued to use the passport whenever she needed it for entry into and exit out of Hong Kong.  This raises the issue of whether there is added culpability in the second and fourth charges which needs consecutive sentencing.  I am informed that all the offences involved use of the passport.

24. The answer to this question it seems to me is that there is added culpability in Charge 4 as it shows continued use of the travel document. However, this does not mean that every use of the passport requires to be prosecuted and punished.  If that was so the potential would exist for the final sentence on this appellant to be ridiculously long.

25. I would impose on the appellant in respect of each of the charges a sentence of 2 months’ imprisonment from a starting point of 3 months’ imprisonment. I do not see how Charge 2 adds to the culpability other than by continued use and continued use of the false passport can be better reflected by ordering part of the sentence for the fourth charge to be served consecutively to the other charges.  In my view a further 1 month’s imprisonment is sufficient to reflect the added culpability that is reflected in Charge 4.

Conclusion

26. I therefore allow the appeal, quash the sentences imposed on the appellant by the magistrate and substitute for them sentences of 2 months’ imprisonment for each of Charges 2, 3 and 4.  I further order that the sentences for Charges 2 and 3 be served concurrently with one another but that 1 month of the sentence for Charge 4 be served consecutively to the sentences for Charges 2 and 3, thus resulting in a total sentence of 3 months’ imprisonment.